A federal judge in the Western District of Texas recently sided with a growing trend of rulings adopting a narrow reading of the Video Privacy Protection Act (VPPA) in dismissing a putative class action against the operators of a Texas Longhorns email newsletter.  The case involved tracking pixels embedded in videos that were linked in the newsletter but posted to public websites.  The court held that because the plaintiffs had not made a durable commitment through signing up for the newsletter, and because videos were not embedded in the newsletter, plaintiffs failed to meet the definition of “consumer” as defined in the VPPA.

The plaintiffs in Brown v. The University of Texas at Austin et al., 1:23-cv-00374, alleged they provided their personally identifiable information (PII) to sign up for a newsletter operated by defendants Learfield Communications, LLC and Sidearm Sports, LLC, and that the newsletters included links to videos hosted on a public Texas Longhorns team website run by the same entities (the University of Texas was previously dismissed from the lawsuit).  Those videos allegedly included embedded “Pixel” software that can collect and track certain viewer PII.  The plaintiffs claim that the site did not disclose this data collection or the transfer of such data in violation of the VPPA.

The court began its analysis of the VPPA by noting it was the third court to address such claims against these defendants, following similar decisions in Florida and Nebraska in 2023 relating to their operation of other school sports websites.  The court focused on the VPPA’s fourth element, that the PII is “concerning any consumer,” where a consumer is “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”  18 U.S.C. § 2710(a)(1).  Other circuits defined “subscriber” to include an exchange of consideration, that did not have to be monetary, but differed on what consideration was sufficient.  After endorsing the view of the Eleventh Circuit in Ellis v. Cartoon Network, Inc., 803 F.3d 1251 (11th Cir. 2015) that factors showing a subscription included “payment, registration, commitment, delivery, expressed association, and[] access to restricted content,” the court agreed that signing up for the newsletter did not involve sufficient consideration where there was no durable commitment or account creation, no payment, and no penalty for opting out.

The court next turned to an alternate analysis of “consumer” for purposes of the VPPA, citing Carter v. Scripps Networks, LLC, 2023 WL 3061858, at *6 (S.D.N.Y. Apr. 24, 2023) to define consumer as one who “rents, purchases, or subscribes to[] audio visual materials, not just any products or services from a video tape services provider.”  Here, the plaintiffs only signed up to a newsletter, and did not receive any greater access to the linked videos than the public, and therefore the plaintiffs did not subscribe to audio visual materials.  Plaintiffs argued that this reading was overly narrow, and that the “goods and services from a video tape service provider” part of the consumer definition encompassed their claims; however, the court noted this position was “disfavored as of late” pointing to a range of district court cases from the past year from around the country, and held that it was “adopting a narrow definition of the VPPA,” explaining that “[i]t only makes sense that in the context of the law and its purpose that the alleged subscription be related to audio visual content.”

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Sam Greeley Sam Greeley

Samuel Greeley is an associate in the firm’s Washington, D.C. office representing clients in complex civil litigation and government investigations. Sam’s practice focuses on a broad range of high-stakes issues facing companies in the tech sector, including class actions, antitrust investigations and litigation…

Samuel Greeley is an associate in the firm’s Washington, D.C. office representing clients in complex civil litigation and government investigations. Sam’s practice focuses on a broad range of high-stakes issues facing companies in the tech sector, including class actions, antitrust investigations and litigation, and federal agency enforcement matters. This includes advising clients on issues relating to cryptocurrency and digital assets, and how they can stay ahead of the quickly evolving enforcement and litigation landscape. He has also defended clients from class actions and white collar investigations in other industries, including life sciences and healthcare.

Photo of Eric Bosset Eric Bosset

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions…

Eric Bosset is a partner whose practice encompasses a broad range of complex litigation matters, with an emphasis on (1) privacy, data security and consumer protection, (2) employment and ERISA, and (3) financial products and services. Eric has extensive experience in class actions, MDL proceedings, and other multi-party lawsuits. His trial victories include a jury verdict in an employment class action lawsuit that The National Law Journal ranked among the 25 most notable defense verdicts of the year.

Privacy and Consumer Protection

Eric was named “Most Valuable Player” in Privacy & Consumer Protection by Law360. He has an extensive practice representing Internet service providers, publishers and advertisers in class action litigation involving claims of unauthorized collection and disclosure of personally identifiable information (“PII”). He has successfully represented Microsoft, AOL, CBS, McDonald’s, Mazda, the Indianapolis Colts, and other companies in obtaining the dismissals of putative class action lawsuits that asserted federal law claims under the Electronic Communications Privacy Act (“ECPA”), Computer Fraud and Abuse Act (“CFAA”), and Video Privacy Protection Act (“VPPA”), as well as state law claims under the Illinois Biometric Information Privacy Act (“BIPA”) and for unfair practices, trespass, and invasion of privacy.

Eric also represents companies in connection with matters arising under the Fair Credit Reporting Act (“FCRA”), Fair and Accurate Credit Transaction Act (“FACTA”), Telephone Consumer Protection Act (“TCPA”), and other consumer protection statutes.

Employment and ERISA

Eric has extensive experience defending companies in individual and class action litigation brought under federal and state laws concerning discrimination, retaliation, whistleblowing, wage and hour disputes, and wrongful termination, as well as in class action litigation involving the Employee Retirement Income Security Act (“ERISA”). Eric has the rare distinction of having tried and won a jury verdict in a class action lawsuit alleging “pattern or practice” discrimination on the basis of age in connection with a corporate reduction in force. Bush, et al. v. Deere & Company (C.D. Ill.). He also secured the reversal on appeal of a class certification order in a “stock drop” lawsuit that claimed breaches of fiduciary duty in the administration of a company retirement savings plan. In re Schering Plough Corporation ERISA Litig., 589 F.3d 585 (3d Cir. 2009). Eric also represents clients in EEOC investigations.

Financial and Fintech

Eric’s practice includes the representation of financial and fintech companies on a broad array of civil litigation, arbitration, and regulatory enforcement matters relating to financial products and services, including matters for Wells Fargo Bank, JPMorgan Chase, Synchrony Bank, Envestnet, Yodlee, and MidFirst Bank.